107 Ind. 307 | Ind. | 1886
Lead Opinion
The facts upon which this case rests may be briefly stated as follows: In July, 1881, David June, Erastus B. French and Robert Brayton, the plaintiffs below and appellants here, commenced an action against John F. Payne, Benjamin M. Payne and John P. Payne in the court below, to recover the possession of a portable engine made by Y. D. June & Co., of Fremont, Ohio; and to enable the defendants in that action to retain the possession of the engine pending the action, the said Benjamin M. Payne, as principal, and Thompson Davis, Martin Sarvies, David Vancleve and Asbury T. Hicks, as his sureties, afterwards, on the 20th day of July, 1881, executed a bond to the plaintiffs in the penal sum of $1,000, conditioned that if the said obligors should safely keep such engine, and in no wTise injure the ' same, and should deliver said engine to the plaintiffs, or to the sheriff of Montgomery county, in the event that judgment should be rendered for the return thereof, such bond should be void. On the 27th day of May, 1882, the plaintiffs in that action recovered a judgment against the defendants for the possession of the engine and for the sum of $600 in case a return of the engine could not be had. The defendants at the time prayed an appeal to the Supreme Court and thirty days’ time was given within which they might file an appeal bond in the penal sum of $1,000, to the approval of the clerk. Such a bond was filed within the time limited, and approved by the clerk, but a transcript of the proceedings appealed from was not filed in the Supreme Court until the 3d day of May, 1883. Pending the appeal in this court, no
The defendants thereafter answered in four paragraphs:
First. That an appeal had been prayed in term time from, the judgment for the recovery of the engine; that the appeal had been perfected by the execution of a proper appeal bond and the filing of a transcript in the Supreme Court, and that such appeal was pending and undetermined when this action was commenced.
Second. That the judgment for the recovery of the engine had been appealed from as above set forth, and that while such appeal was still pending they had returned the engine described in the bond to the sheriff of Montgomery county.
Third. That an appeal had been taken, as above stated, and
Fourth. That an appeal had been prayed and taken as stated in the first paragraph herein, but without averring that such appeal was still pending and undisposed of.
A demurrer was sustained to the second paragraph, and overruled as to the remaining paragraphs of the answer. Issue, trial by jury and verdict for the plaintiffs, assessing their damages at $35.20.
Answers to special interrogatories respectively submitted to the jury found the facts to be substantially as herein above stated, and showed that the amount of the damages assessed by the general verdict was for costs due upon the original judgment. The plaintiffs thereupon moved for judgment in their favor upon the answers to the special interrogatories for the sum of $600, the adjudged value of the engine, with 'interest, including also the amount of costs due upon the original judgment, but that motion, as well as a motion for a new trial, was overruled, and judgment was rendered for the amount of the damages assessed by the general verdict.
The plaintiffs, appealing, assign error upon the overruling of their demurrer to the first, third and fourth paragraphs .of the answer, upon the. overruling of their motion for judgment upon the answers to special interrogatories, and upon the refusal of the circuit court to grant them a new trial.
We see no objection to the sufficiency of the first and third paragraphs of the answer. An appeal prayed for in term time, and perfected within the time limited by the court, suspends all further proceedings under the judgment appealed from, and a return of the engine to the sheriff was a performance of the principal condition of the bond. Wells Replevin, section 426.
As to the sufficiency of the fourth paragraph of the an
The important, and indeed controlling, questions at the •trial were : First. Were the defendants guilty of unreasonable delay in offering to return or in returning the engine? Secondly. Could the return of the engine after the commencement of this action be taken into consideration in mitigation •of the damages ?
It is true that, in cases of this kind, the property must be returned in as good order as when received under the bond, and within a reasonable time after a return has been awarded, • and that too without demand for its return. Wells Replevin, sections 419 to 423, both inclusive. But what is a reasonable time must, to a very great extent, depend upon the circumstances attending each particular case.
In the case before us, there was evidence tending to show what seemed to be an implied understanding that no measures would be taken to enforce the penalty of the bond, or to disturb the statu quo, until there was a final decision of ill is court upon the appeal taken in the replevin suit. There was also evidence tending to prove that from the first the plaintiffs did not desire a return of the engine, but preferred to abide the course of events in this court, and, if practicable, to eventually recover the value of the engine-in money. This was in part -well illustrated by the refusal of one of their attorneys to give any directions concerning the return
There was also evidence tending to prove that the engine was in as good condition when it was returned as it was when the bond in suit was executed. Wc have consequently no reason for concluding that the general verdict was not substantially right upon the evidence.
The judgment is affirmed, with costs.
Rehearing
On Petition for a Rehearing.
After the verdict in this case was returned;, the plaintiffs, in addition to their motion for a judgment for a larger sum than was assessed in their behalf by the jury upon the answers to special interrogatories, moved the court for judgment in their favor for the sum of $600, and the costs due on the original judgment, upon the pleadings, on the ground that, as no general denial was filed, all the facts necessary to entitle them to such a judgment were admitted at the trial, and that motion was also overruled. A rehearing is prayed for in this case for the alleged reason that the circuit court erred in overruling that motion, and that we omitted to rule upon that question at the former hearing.
But the answers in this case, whether well pleaded or not,.
Where, without objection, a party alleging affirmative matter in his pleading goes to trial without requiring an issue to-be formed upon such pleading, he can not afterwards ask judgment in his favor as by confession. Bass v. Smith, 61 Ind. 72; Lewis v. Bortsfield, 75 Ind. 390; Felger v. Etzell, 75 Ind. 417 ; Stribling v. Brougher, 79 Ind. 328.
It is unnecessary to set out any more of the special interrogatories and answers of the jury, since there is nothing in any of the answers in question inconsistent with the facts as stated in the original opinion.
The petition for a rehearing is overruled.
Filed Sept. 25, 1886.